Mabo Case: Analysis of Land Rights and Aboriginal Law

This essay provides an in-depth analysis of the Mabo case, a landmark decision in Australian legal history. It explores the historical context, the legal arguments, and the High Court's ruling that overturned the doctrine of terra nullius, recognizing the land rights of Aboriginal and Torres Strait Islander peoples. The essay examines the impact of the Mabo case, including the introduction of native title and the subsequent Native Title Act of 1993. It discusses the case's legal and social ramifications, the responses of various stakeholders, and the ongoing challenges faced by Aboriginal communities in claiming their land rights. The essay also touches upon related cases such as Milirrpum v Nabalco Pty Ltd and Wik decision, providing a comprehensive overview of the legal landscape surrounding Aboriginal land ownership in Australia. The essay concludes by evaluating the overall impact of the Mabo case, highlighting its significance in shaping the legal and social recognition of Indigenous rights, while acknowledging the complexities and limitations of the legal outcomes.

Running head: MABO CASE 0
Business Law Assignment

MABO CASE 1
Introduction
Mabo and others v Queensland (No 2) (1992) or Mabo case has been a significant case in
Australian legislative. For this case, the high court made their historical decision on 3rd June
1992. This case was based on recognising the rights of Aboriginal and Torres Strait Islander
peoples since they were living in Australia for 40 to 60 thousand years before the British
arrive. The case was led by Eddie Mabo which eventually changed the doctrine of ‘terra
nullius’. The high court of Australia recognised the rights of Aboriginal peoples because it
shows their unique relationship with the land.
The decision provided by the the high court does not improved the situation of aboriginal
peoples. The high court also introduced a guideline to prove the legitimacy of an indigenous
community. Most of the aboriginal people did not get satisfied with the judgement of the high
court. This essay will discuss the various important elements of the case and analyse its
result. Further, the essay will evaluate the legal impact of Mabo case and its effect on the
lives of Aboriginal peoples.

MABO CASE 2
Mabo Case
The Mabo case is one of the most popular and important cases in Australia. The judgement of
this case was given by the high court on 3rd June, after a decade long litigation. The
judgement was based on reversing the doctrine of terra nullius, which did not recognise the
land rights of Aboriginal peoples. The doctrine of terra nullius was based on British law,
which provided that all the regulation of England will apply to a new land. According to
Short (2012), the court provided that this doctrine does not apply in case of Australia since
aboriginal peoples are living for more than 40 to 60 thousand years before the British reaches.
The court provided that in order to apply terra nullius the lands should not be barren or
inhabited, instead the land should be civilised. The existing customary law of peoples must be
acceptable of England law to the extent that their own customary laws are not being modified
or excluded due to inconsistency with England law.
The action against the doctrine was led by Eddie Mabo, who was a Torres Strait Islander.
According to the book of Loos and Mabo (2013), Mabo believes that the Australian law does
not recognise the land ownership of Aboriginal people. In his childhood, the Torres Strait
Islands were rigorously regulated by Queensland administration. He made a speed explaining
the situation of aboriginal peoples and their ownership over the land of Torres Strait Islands.
A lawyer heard the speech and ask Mabo to challenge the Australian government to properly
establish their land ownership right. This case was important since it identifies the ownership
right of Aboriginal peoples over their land which was taken by British without any payment
or contract. As per Kennedy (2012), the Mer Islanders decided that Eddie Mabo will lead
their suit to challenge the principles of terra nullius.
The case ran for 10 years and on 3rd June 1992, the high court provided their decision that
principle of terra nullius should not apply over Australia. As per Hayward (2012), the
decision recognised the land ownership rights of Aboriginal peoples in the Torres Strait
Islands, the same right which was established before British arrival will still be applicable.
The high court introduced the conception of native title and recognised that some indigenous
peoples have right and interest over certain lands due to their traditional regulations and
customs (Council et al. 2015). The Australian parliament in order to establish the interest of
aboriginal peoples in their lands passed Native Title Act in 1993. The judgement of Mabo
case was known as ‘Mabo decision’.

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The Mabo case has considered as a historical case which gives victory to indigenous peoples
in Australia. But several other indigenous peoples did not consider it as a victory. As per
Chaney (2016), the judgement given by the high court was considered as one of the most
controversial judgement. Various groups such as mining show their disagreement towards the
decision because it would cost them more and time to extend their leases and many of their
applications will be rejected. On the other hand, indigenous peoples were celebrating the
opportunity of apologise against the treatment received by them. The Mabo decision granted
certain right regarding the lands back to indigenous peoples but most Aboriginal peoples
were not affected by the decision. The court provided various requirements which have to be
fulfilled by an Aboriginal person in order to claim their right over a land. Many people
consider such requirements as unfair against them.
In 1996, the high court provided another landmark judgement which provided that the native
title did not certainly get extinguish due to a pastoral lease. According to Holmes (2014), the
aboriginal people may access to their leased rural lands if they provide significant proof of
their claim thought ancestral and customary connection. In other words, if an indigenous
person can establish his native title over a leased land through customary and ancestral
evidence, then they can have the title of land even when there is a lease going on over it. This
decision was known as Wik decision, and this judgement significantly aggravates the
conservative Australia. The media coverage of this judgement backlashed and broadens the
gap between land owners and indigenous peoples (Maddison 2012).
The aboriginal people consider the lands ‘Mother Earth’ and they had a strong bond with
their lands. They build their homes, hunt food and raise their families over the same lands.
They traveled freely around the country and visit various sites. As per Carmichael et al.
(2013), there were several sacred sites which were considered as ‘the dreaming’ by their
ancestors. But it all changed in 1788 when British arrive in Australia, they were considered as
‘white man’. The first colonisers arrive in Australia and claim aboriginal’s lands as their own.
According to the book of Montagu (2013), the first colonisers also established a system of
government and regulations, the aboriginal peoples were unfamiliar with these laws. These
laws did not benefit Aboriginal peoples; instead, it took their land from them and left them
with nothing. The aboriginals peoples suffered due to loss of their land, therefore, they fight
back to claim their ancestors land back.

MABO CASE 4
According to Cullen (2012), other than Mabo case, there have been several other attempts by
aboriginal peoples to establish their land ownership right. In Milirrpum & others v Nabalco
Pty Ltd (1971) case, a suit has been taken against Nabalco Corporation to dismiss a 12-year
mining lease. The arguments of the case provided that federal government did not have right
to give the lease to organisations on lands which belong to aboriginal peoples. Justice
Blackburn provided that there is no legal native right of aboriginal people over the lands and
even if there were a law, the rights of native people were distinguished. This decision was
overruled after two decades when the right of ownership of lands was provided back to
aboriginal peoples in Mabo case.
After the judgement of Mabo case in 1992, 126 native land title claims have been filled in the
courts, in more than 90 of such claims, the native title did not get established over lands.
Various communities have been established as original custodian of their ancestry lands such
as south-west Victoria, Pilbara, Torres Strait and Northern territory. But a maximum number
of custodian claims has been rejected by the court. Unfortunately, hundreds of land claims are
waiting for trial and many people are forced to wait for years before the commencement of
their trial (Gumbert 2013).
Although the aboriginal peoples now have certain legal rights towards their ownership in
lands, this right was based on fulfillment of certain guidelines. An aboriginal person has to
meet those guidelines in order to establish their claim on the certain land. As per Glaskin and
Weiner (2013), most of the land in Northern Territory that can be claimed by Aboriginal
people were semi-desert or outside the town’s boundaries. Most of the claims of aboriginal
people were rejected by the administration, and they have to prove their legal ownership over
the lands under their customary laws. They have to prove under Aboriginal regulations that
they have a duty towards certain sacred sites which they are trying to claim.
In South Australia, there are other rules and necessities for an Aboriginal person to fulfill, in
order to establish their claim over a certain land. Many principles of Pitjantjatjara Land
Rights Act was applied on an Aboriginal person when they claim their ownership over certain
land. The people of Anangu Pitjantjatjara and Yankunytjatjara get only a title of 10 percent in
South Australia. The land of Anangu Pitjantjatjara was established in the north and on the
south of it Maralinga Lands were situated. Maralinga Lands were used by British for their
nuclear tests. The aboriginal people get the land due to the regulations of Maralinga Tjarutja
Land Rights Act (Hallam 2014).

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The Native Title Act passed by Parliament does give Aboriginal peoples right to claim their
lands, but they will receive the land after completion of mining leases. Even if a land is
effectively claimed by an Aboriginal person, they do not have right on the progress of such
land such as mining royalties. The act does not provide right to all the indigenous
communities and various communities are left with no rights over their lands, such as Yorta
Yorta. Another problem arises due to division in various aboriginal people’s communities.
Instead of being united, most communities fight to establish their claim over certain lands.
Due to such fights, it has become tough for people to prove their claim. According to Muriel
Bamblett, an aboriginal leader, these changes have caused tension between families; most of
them are not even talking with each other (Savage and Gair 2014).
Gary Foley, a speaker of the aboriginal community called the Mobe judgement ultimate act
of dispossession since 1788. According to the book of Foley, Schaap, and Howell (2013), he
said that high court has simply provided a tiny olive branch to indigenous communities and
the legal rights of lands are still remains with white land owners. The purpose of the
movement was to get legal land right, but instead, Aboriginal communities have got native
titles. According to him, these native titles provided by the court to aboriginal peoples are
entirely symbolic, and they are completely different from actual legal land rights. The
judgement of the high court has legitimised the dispassion process by giving the native title to
aboriginal peoples and legal right to white land owners. The court does provide land
ownership to some communities, but they have to prove their ownership of the land upon
some “cultural connection”, that is established by the High court and most of the cases are
still pending in court.

MABO CASE 6
Conclusion
From the above essay, it can be concluded that Mabo case judgement has been important in
establishing the rights of aboriginal people’s in Australian law. The judgement recognises the
right of aboriginal people over their lands and gives them the opportunity to claim their right.
But for the most part, the situation of aboriginal people has not changed. The act recognises
the right but in order to claim any land, an aboriginal person has to prove many guidelines.
Most of such guidelines are difficult to prove and a maximum number of claims get rejected
by the government. The decision of Mabo case does seem like a win for Aboriginal peoples
in the beginning but actually, it does nothing to improve their situation. Still, it is
significantly tough for aboriginal peoples to claim their right over a land and even after
proving their claim, they are not entitled to benefits such as mining royalties.

MABO CASE 7
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Journal, 37(6), pp.535-540.
Council, K.L., Council, R.V., Council, G.I.S.S. and Council, T.S., 2015. What is Native
Title?.
Cullen, R., 2012. Mabo V Queensland.
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black power, land rights and the state. Routledge.
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beliefs of the Australian Aborigines. Routledge.
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